Judge Dodges Legality of NSA Mass Spying, Citing Secrecy Claims

By Aaron Mackey

EFF’s case challenging NSA spying, Jewel v. NSA, has come further than any case trying to end the government’s mass surveillance programs. Our clients have survived multiple efforts by the government to end the case, and they continue to push for their day in court. As a result, we’re no stranger to overcoming legal obstacles thrown our way.

The latest obstacle came Thursday, when the court hearing our long-running case challenging NSA spying ruled that the lawsuit should be dismissed on account of the government’s argument that to proceed further would jeopardize national security. Although we are disappointed that the case was dismissed on the basis of the government’s state secrecy arguments, we are not surprised.

The Justice Department insists that our legal fight against this spying is bound by a Catch-22: no one can sue unless the court first determines that they were certainly touched by the vast surveillance mechanisms of the NSA. But, the government argued successfully, the court cannot decide whether any particular person’s email, web searches, social media or phone calls were touched by the surveillance unless the government admits it. Which, of course, it will not do.

We took on this circular argument last month. EFF Special Counsel Richard Wiebe reviewed the enormous amount of direct and circumstantial evidence showing our clients’ communications likely swept up by the NSA dragnet surveillance to establish legal “standing.” We noted that it’s not necessary to absolutely establish that our client’s communications were touched by the surveillance to prevent dismissal. Given the mountain of evidence that we have presented and the admitted scope of the program, there is likely no chance that our clients’ communications—like the communications of millions of innocent Americans—weren’t touched by the government’s programs.

We also directly addressed the government’s state secret claims, which were first rejected by the Court in 2006 but which the DOJ continues to assert. We got a boost from a recent court ruling in the U.S. District Court of Appeals for the Ninth Circuit, Fazaga v FBI, which flatly rejected the application of the state secret privilege in electronic surveillance cases. It instead found that Congress required the courts to use a part of the Foreign Intelligence Surveillance Act, 50 U.S.C. 1806(f), to decide whether the alleged spying was lawful. That same law should be used in Jewel.

The court hearing the case sided with the government. We think the decision is wrong. Moreover, the American people deserve to know whether mass surveillance is legal and constitutional. We look forward to seeking review in the Ninth Circuit.

Aaron works on free speech, privacy, government surveillance and transparency. Before joining EFF in 2015, Aaron was in Washington, D.C. where he worked on speech, privacy, and freedom of information issues at the Reporters Committee for Freedom of the Press and the Institute for Public Representation at Georgetown Law. Aaron graduated from Berkeley Law in 2012, where he worked for EFF while a student in the Samuelson Law, Technology & Public Policy Clinic. He also holds an LLM from Georgetown Law. Prior to law school, Aaron was a journalist at the Arizona Daily Star in Tucson, Arizona. He received his undergraduate degree in journalism and English from the University of Arizona in 2006, where he met his amazing wife, Ashley. They have two young children.

This article was sourced from EFF.org.

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